Marshall Islands Brings Lawsuits Against All Nine Nuclear Weapons Possessing States in the International Court of Justice!!!

Wow!!! I just learned about this this morning. Apparently the cases were filed this morning with the ICJ. See the Guardian news story here. Here then are the legal documents themselves that have been filed, both in the ICJ and in US Federal Court.

I’m still looking through the documents, but it appears that the RMI has brought suit against all five NPT NWS, plus India, Pakistan, Israel, and North Korea, basically arguing that they are in violation of the NPT Article VI obligation to disarm. With regard to the non-NPT parties (India, Pakistan, Israel, NK) the memorials argue that the obligation in Article VI has passed into customary international law and is thus binding on all states. Wow.

I’m sure there will be much more to say about all this – I’ve been a bit blindsided by it. But at first blush, I would note a couple of things about the jurisdiction of the ICJ.

Of the states who are respondents in these actions at the ICJ only three of them – the U.K., Pakistan, and India – have accepted the compulsory jurisdiction of the ICJ. That means that the cases against the U.K., Pakistan, and India should be able to go forward procedurally. For all of the other states, including the U.S., for the ICJ to be able to exercise jurisdiction, the respondent state will have to give its ad hoc consent for the case to go forward. I’d say there’s just about zero chance that this will happen in any of the other actions. So at least on my first read through of the materials, it would appear that the three viable cases before the ICJ are the cases against the U.K., Pakistan, and India.

India’s declaration of Compulsory Jurisdiction has several exceptions. Para 7 of the Declaration is quite clear – India will not accept jurisdiction of the ICJ concerning the interpretation of a multilateral treaty – NPT is one such treaty – unless all the parties to the treaty are also parties to the case.
I will try and post a detailed analysis on my blog.

I do not quiet agree with Professor Joyner’s following arguments:
“For all of the other states, including the U.S., for the ICJ to be able to exercise jurisdiction, the respondent state will have to give its ad hoc consent for the case to go forward. I’d say there’s just about zero chance that this will happen in any of the other actions. ”

In hindsight, it is true that only there are only cases against three states, namely, the U.K., Pakistan, and India. If you visited the official website of ICJ today (September 28, 2014), you can only find those three cases (http://www.icj-cij.org/docket/index.php?p1=3&p2=2). However, at the time when this article was posted (April 24, 2014), the arguments quoted above are, in my opinion, not so tenable, at least with regards to the US. As for China and North Korea, I totally agree with Professor Joyner that the chance for them to participate in ICJ legal proceedings is “about zero”, given that they have never done so and their hostility to judicial settlements of international disputes, and even to the whole system of international law as a whole. But when it comes to the US, the situations are much more complicated, and I have to say the “chance” is more than “zero”.

Article 36(2) of the ICJ Statute, the so-called ‘optional clause’, stipulates that:
“The states parties to the present Statute may at any time declare that they
recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.”
Once upon a time, the US declaration of 1946 accepted the Court’s compulsory jurisdiction. However, it withdrew from the court’s compulsory jurisdiction in 1986 after the court ruled it owed Nicaragua war reparations. The US also disagreed with the court’s stance that it failed to fulfill its obligations under the Vienna Convention on Consular Relations in 2005 in cases involving Mexican nationals on death row. But even after the its withdrawal from the Court’s compulsory jurisdiction in 1986 and apart from those cases concerning the compulsory dispute settlement mechanism provided by the Optional Protocol to the Vienna Convention on Consular Relations (Avena case, LaGrand case, Vienna Convention on Consular Relations case), the US participated in a considerable number of cases before ICJ, to name a few: Legality of Use of Force (Yugoslavia v. United States of America), Oil Platforms (Islamic Republic of Iran v. United States of America), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) and Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy)…

The continuing participation of ICJ legal proceedings shows that the attitude of the US towards ICJ is not so negative, at least not as hostile as that of China and North Korea. As Judge Joan E. Donoghue, the U.S. member of ICJ, said, “There’s always been a little bit of a love-hate relationship” between the US and the ICJ. (From the website of “Council on Foreign Relations”, http://www.cfr.org/courts-and-tribunals/united-states-icj/p26905)

To conclude, the US’ attitude towards ICJ is rather complicated, and the question of whether the US will participate in a certain case before ICJ is hard to anticipate, and I believe it is largely on a case-by-case basis.

Wang Tingliang
(A student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)

More than half a year after these cases were filed, I still am in awe of the courage demonstrated by the Marshall Islands in taking on some of the greatest powers in the world. As was articulated in such a poignant manner by the 78 civil society leaders from around the world including Archbishop Desmond Tutu and Oscar Arias who wrote an Open Letter in Support of the Marshall Islands’ Nuclear Zero Lawsuits,

“In taking this action, you, and any governments that choose to join you, are acting on behalf of all the seven billion people who now live on Earth and on behalf of the generations yet unborn who could never be born if nuclear weapons are ever used in large numbers… Win or lose in the coming legal arguments, what you, and any who join you, will do has the deepest moral significance, going far beyond the specific interests of any country or government and beyond the usual calculations of national self-interest.” (http://goo.gl/leuEoc)

As per David Krieger, President of the Nuclear Age Peace Foundation and a consultant to the Marshall Islands on the legal and moral issues of the case, “The Marshall Islanders are unselfishly acting for the good of all humanity. This small island nation is the true David standing up to the nine nuclear Goliaths. The Marshallese people have suffered irreparable damage from the U.S. nuclear testing program. Yet this lawsuit does not seek monetary reparations. Rather, it seeks the fulfilment of promises made for negotiations for the total elimination of nuclear weapons so that no other nation will suffer as they have. The courage of this small island nation is remarkable.” (http://goo.gl/7NAd2W)

Even if the Marshall Islands lose the cases against the nuclear powers, I think that they have already succeeded in reminding the international community of the “obligation [of States parties to the NPT] to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.” (para 99 http://goo.gl/vbcWd3) It is understandable why smaller states do not want to alienate themselves from some of the biggest and most powerful states in the world, but this is a perfect example of the potential for the smallest voice to effect the biggest change.

This lawsuit is a good push for nuclear disarmament. I think Marshals Island have the right to do so, especially after being the victim of the environmental and health consequences caused by the nuclear tests performed by the United States of America.
However, this lawsuit might face some difficulties. I am doubtful about the success of this complaint, for example regarding article VI of the Non Proliferation Treaty (NPT) it is difficult to define if a state has or has not pursued negotiation in “good faith” aiming at the cessation of the nuclear arms race. Moreover, as mentioned by the author, half of the countries sued do not recognize the jurisdiction of the International Court of Justice (ICJ) and the other half are not member parties of the NPT.

Even if Marshall Islands is successful in court, I am not so confident that the states are going to accept or follow the ICJ mandate. I really hope that this effort at the very least can call the attention of the International community, especially nuclear-armed countries to engage in serious conversations regarding nuclear disarmament.

America is committed to nuclear weapons and no matter what the courts may say America will ignore the judgement.
A country that shafts the people on Diego Garcia, ignores a judgement against them for needless killings in Nicaragua, starts wars against countries that never threatened or attack the US and overthrows numerous democracies is not going to bother paying attention to the Marshall Islands or some court!!